By Emil van der Poorten –

Emil van der Poorten

The political dust will have settled on the recent general election by the time you see this and that is, in one way, quite a relief. The fact that E-Day didn’t feature the murder and mayhem that has, for far too long, been taken as a concomitant of the primary democratic process in this country seemed a matter for surprise to many whom I engaged in conversation on the subject.

I am old enough to remember when it wasn’t so and I am sure that several of the younger generation who are quite easily (and understandably!) bored by my tales of yore, believe that these are but the recollection of a failing memory to which a certain element of glamour has accrued with the passage of time!

But, believe you me, Philip Gunawardena’s use of members of his dock workers’ union to combat the Island Reconvicted Criminals (IRCs) that came out of the Senanayakes’ and Kotelawalas’ plumbago (graphite) mines simply wasn’t in the same league as the unleashing of underworld killers-for-hire by those who depended on the drug barons (and I don’t use the term lightly) of what is constantly referred to as the last bastion of Theravada Buddhism by such as the Bodu Bala Sena (or has that entity disappeared since the political emasculation of Gotabaya Rajapaksa?)

The next obvious question is: what do we do to consolidate and make permanent what we experienced on the 17th of August and advance that newly-re-discovered culture, seeking a long-term solution if not a permanent one to the need for peace and harmony among the ethnic and religious groups in Sri Lanka and the removal of blatant corruption from day to–day governance?

I would strongly urge that the only lasting foundation for peace is the practice of justice first.

The success of initiatives such as the Truth & Reconciliation Commission in post-apartheid South Africa is sporadically referred to by those who believe a similar model could be adopted with success in our land. That sounds to me like simply a knee-jerk response of convenience to the very real challenge of combining the dispensation of justice with the ultimate aim of bringing together entities that have been deliberately pushed and manipulated beyond simple conflict into violence that cannot and must not be permitted to continue. Any refusal to recognize that reality will doom any real reconciliation and bridge-building between the Sinhalese and the Tamil communities, and now the Muslims as well as the majority of those practicing Christianity. Yes, the Rajapaksas and their acolytes have succeeded in deliberately alienating everyone but those paying (militant) lip-service to a bastardized version of a faith that exemplifies peace and goodwill to all. And I do not want any misunderstanding in this matter: I include the hierarchies of some of the religious groups that have been harassed among the guilty, particularly the purple-hatted Cardinal who disappeared from the headlines no sooner he knew Mahinda Rajapaksa’s political fat was in the fire!

Given the fact that our legal apparatus has proved incapable of dealing with its existing case load and the delays in even trials for capital crimes have proved, in spades, that old adage that justice delayed is justice denied, we need to do something radically different to deal with a challenge that must be met and met without delay.

Since we can’t work those accused of crimes through the regular system, can we not offer amnesties of some description as a compromise to the alternative of letting them off the hook completely? Giving such people who have been destroying not only the economic fabric of this country but its very moral and ethical weave might seem like a huge abandonment of all that fairness and justice stand for, but desperate times call for desperate remedies.

I know the preceding suggestion may sound like, literally, giving the guilty a “get out of jail free” card, for many of whom public execution may have seemed too good a fate! However, we’ve got to work with the tools at hand to deal with challenges that have to be met without delay. And, to reiterate, we don’t have anything resembling a courts system of the dimensions that would provide a means of delivering and being seen to do so as expeditiously as circumstances demand.

A compromise? Yes, but one that all practical considerations seem to point to.

Why don’t we declare a wide-ranging amnesty that covers those crimes which involve the misuse and illegal acquisition of public resources? Such an amnesty would require that the guilty party return every penny of their ill-gotten gains or public funds that have been frittered away purely and simply to generate “commissions”, even if it means their having to liquidate some of their own capital resources to do so? Those who either do not choose to buy into such an arrangement and are found guilty by the subsequent application of due process of law or are found to have under-declared their acquisitions would be subject to punishment of a more stringent kind than if they were found guilty of similar offences under the current legal code.

In the case of capital crimes, the bait could be incarceration in places where the resources are established, because they probably don’t exist at the moment, to genuinely rehabilitate those taking advantage of the opportunity offered to plead guilty. In the alternative – if a person pleads not guilty and is subsequently found to be so – I would urge the application of the death penalty which has not even been officially suspended but where those sentenced to pay the ultimate price have not done so for decades. I have never believed that the death sentence for capital crimes served any purpose but I believe the current exceptional circumstances necessitate its use as a short-term, draconian, bargaining chip. After all, we are not talking about crimes of passion here but cold-blooded executions such as those of Lasantha Wickrematunge and Prageeth Ekneligoda.

In the case of massive embezzlement of public funds and misuse of government resources, what could be used to lure those we want in the net would be an offer of no prison time if the loot is returned immediately. That carrot must be balanced with the stick of extremely harsh penalties imposed on those found guilty of misappropriating cash or state property above a certain value if found guilty after pleading not guilty. Draconian? Certainly, but desperate situations call for radical responses!

Ideally, in the event that an individual chose to plead not guilty, due process of law would ensue and all the various steps gone through before a person was found guilty or innocent. However, it has been patently obvious for more time than one would care to remember that the existing system, as fine as it might be in principle, has ceased to work in practice for reasons that have been stated at the beginning of this piece.

Let me be very clear: in all cases, the basic principles of justice will prevail. All that is being suggested is a variation in the manner of its practice and the penalties for guilt.

What needs to be dinned into the heads of our decision-makers is that the status quo is TOTALLY UNACCEPTABLE AND WE HAVE TO TAKE STEPS TO RECTIFY THAT STATE OF AFFAIRS. The current practice, particularly of the “insurance buyers” in the current dispensation, of allowing the sharks to escape while the sprats and sardines are made into karawala (dry fish) on the hot burning sands of popular distaste for them cannot and must not continue.

I have NEVER supported capital punishment for any crime throughout my life but the massive misery caused to so many by so few presents a totally different challenge and we have no choice but to find or devise a solution.

It’s TINA* my friends, let’s face that fact and get on with the job!

*There Is No Alternative